Joint Custody of the Dog in Divorces? Not in Vermont

If you consider your dog a member of the family, what happens to him or her in case of a divorce? That question has caused acrimony in more than one couple. In some ways, it's easier to figure out who gets the kids, because there's a complex legal infrastructure dedicated not only to making the judgment about custody, but enforcing and modifying the terms afterward. But dogs and other pets are generally treated as property, just like the house and car.

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Belle, the German Wirehair Pointer at the center of the court battle.

The question of whether a dog should be treated as common property or assigned custody like a child is a thorny one. Right now, it's a serious bone of contention in a Vermont divorce case between Daniel Hament and Laura Baker. The couple were apparently able to come to amicable agreements about how to split everything except custody of Belle, their 11-year-old German Wirehaired Pointer. Baker asked Judge Linda Levitt for the canine equivalent of a joint custody agreement, while Hament wanted sole ownership of the dog. Levitt's decision was that joint custody wasn't a workable solution, because even if both parties agreed to it, the family court wouldn't enforce it. When she made the decision, Belle went to Hament.

Levitt's decision didn't entirely treat Belle as if she were a car or a house. When the couple originally came before the judge, she said her decision would be based on which of them was "more active" in the dog's care. That turned out to be more difficult to determine than it sounds. The deciding factor was that although both spouses actively cared for Belle, she had grown used to going to work every morning with Hament, who is a vet at the Richmond Animal Hospital.

However, it also sounds like Baker's relationship with Belle may have counted against her in the judge's eyes. Levitt said that Hament treated Belle "like a dog," whereas Baker treated her "like a child." The judge believes that the dog would benefit from Hament's "more balanced" attitude.

Baker appealed to the Vermont Supreme Court, arguing that Levitt's decision was arbitrary and ignored precedent acknowledging that dogs were "special property" with value beyond that of the house or car. The court disagreed and upheld the original decision. Justice Geoffrey Crawford wrote in the decision that a court order would be inappropriate in the case.

"In contrast to a child, a pet is not subject to a custody award following a determination of its best interests," Crawford wrote. "Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is generally final and not subject to modification. ... Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Divorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time."

Nancy Smith, who represented Baker in her case, was disappointed that the Supreme Court wasn't willing to be more specific about the special status of pets, and how it could be acted upon.

"Just because you're getting divorced, it doesn't seem the same as giving the piano to somebody," she told Seven Days. "It's severing an emotional connection that we all value as a society and the Supreme Court has valued in other contexts."

It's clear that both people in the case love the dog, but it's strange that the court saw Baker's more maternal affection as something that counted against her. It's as though considering the dog as a family member were a pathology, rather than something that's common to thousands of dog owners.

What do you think? How should the law assign custody of dogs in divorce cases? And did they get this one right?